Lane v. State

• Decision Date: 15 December 1909
• Citation: 129 S.W. 353
• Parties: LANE v. STATE.
• Court: Texas Court of Criminal Appeals

129 S.W. 353

LANE v. STATE.

Court of Criminal Appeals of Texas.

December 15, 1909.

On Motion for Rehearing, June 15, 1910.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Navarro County; H. B. Daviss, Judge.

J. P. Lane was convicted of first-degree murder, and he appeals. Affirmed.

McClellan & Prince, for appellant. F. J. McCord, Asst. Atty. Gen., and Luther A. Johnson, Dist. Atty., for the State.

BROOKS, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at life imprisonment in the penitentiary.

1. Bill of exceptions No. 1 was reserved to the action of the court in refusing first application for continuance for want of the testimony of Mrs. Freda Roberts, by whom defendant expected to prove that he was at witness' house for a week or more just preceding the homicide, and that during such time she had ample opportunity to observe defendant's actions, and that his actions were as set out in defendant's application for continuance, and showed his lunacy. Defendant's counsel was not aware of the materiality of said witness' testimony until the day the application for continuance was made, and too late to issue process to compel her attendance, and, furthermore, if process had been issued, witness' attendance could not have been procured because of her serious sickness, she being confined to her bed following a surgical operation, and physically unable to appear in court, as shown by doctor's certificate. On materiality appellant suggests the following: Because said witness was material as an eyewitness to the conduct of defendant tending to prove his lunacy, which was the sole defense in this case, and the facts expected to be proven by such witness immediately preceded the killing, and said witness had opportunity to observe fully his conduct and actions during defendant's stay in Houston, Tex., which immediately preceded the killing on the return to Corsicana, and the court overruled the application with this explanation: "That there was absolutely no diligence shown on part of defendant to secure this witness. No process of any kind was asked for or issued for witness. And, in view of the evidence developed upon the trial of the case the facts sought to be proved are not probably true." In the first place, the application does not affirmatively show what was expected to be proved by the witness. The application shows a mere conclusion, in that it says that the witness had noted the conduct of the defendant tending to prove his lunacy. What it was or what she would swear to that tended to prove it is not shown in the application. Furthermore, the testimony is not probably true, as suggested by the court, in the light of this record, since the same shows a cruel and wanton killing by a party who was thoroughly possessed of all of his senses, and there is scarcely a suspicion raised by legal evidence to the contrary.

2. Bill of exceptions No. 2 shows that appellant complains that some one had sent to the courtroom and placed on the attorneys' table and in front of the jury and in their full view a coil of rope with a card attached thereto from the sender, on which was written a message to the effect that said rope was sent for the purpose of aiding the county of Navarro in the escape of those confined in jail; that the defendant was and had been confined in jail without bond on the charge of murdering Mrs. Belle Nix, a woman, and the only conclusion that could be drawn from the sending of said rope, and from the rope itself, was that the jury in the case was urged to bring in a verdict of guilty with death penalty, and the only effect said message and said rope could have was that it prejudiced the defendant's case with the jury and created a subconscious belief that the public were clamoring for a verdict of death. The court appends to the bill of exceptions this qualification: "The facts of this incident are as follows: Rev. Mulkey (who charges himself with being a huge practical joker, and the court thinks he really believes the charge to be true), intending to perpetrate a practical joke upon the county judge and county commissioners' court, because of recent escapes from the jail of Navarro county by prisoners by means of blankets which they tore into strips and tied together to let themselves down out of the upper story of the jail, procured a coil of rope, prepared and attached to the rope a neat card, on which was written these words: `To the County Court of Navarro County. An Escape for the Jail. Compliments of Abe Mulkey, A. Humanitarian.' This rope, thus tagged, Rev. Mulkey placed in the hands of a negro man, with instructions to carry it to the county courtroom, and lay it at the feet of the county judge, without explanation. The county courtroom and the district courtroom were adjoining, being only separated by a brick wall. The negro brought the rope into the district courtroom by mistake, and placed it on the table used by attorneys in front of the jury and reasonably near to them and to the defendant, J. P. Lane. Nothing was said. As soon as the rope was discovered, the court in an undertone ordered sheriff to get the rope and bring it to the court's desk, and to attract no one's attention in doing so. The sheriff obeyed and attracted no one's attention that I could observe, I think very few noticed the incident, and no comment was made upon it that I ever heard of. If it was even noticed by the jury, the court is not aware of it, and the court knows that the jury never saw or knew of the message written upon the card. The court with some pleasure disavows entire responsibility for any action of the Rev. Abe—and particularly for this caper. Surely the incident complained of did not outweigh the overwhelming evidence of defendant's guilt produced upon this trial, and become the means of influencing and procuring the jury to convict the defendant. Surely this verdict is founded upon the sound, yet lenient, judgment of the jury when considering of the evidence adduced before them on this trial, rather than upon the incident referred to." Under the explanation of the court, we do not believe there was any prejudicial error presented by this matter, nor do we think the matter ever reached the offensive phase suggested by the bill of exceptions.

3. Bill of exceptions No. 3 shows the veniremen in the cause were in court and heard the application for a continuance made by defendant on account of the absence of the witnesses Max Roberts and Freda Roberts, and also heard what transpired as hereafter detailed. Upon presenting the application for continuance on account of the absence of said witnesses, the court announced he would communicate with the sheriff of Harris county, where said witnesses resided, to see if the attendance of said witnesses could be procured, whereupon M. Dorenfield, a son-in-law of defendant, left the courtroom and communicated by long distance phone with Max Roberts, one of said witnesses, and returned into court and stated to his wife, who was defendant's daughter, according to the contention of the state, but contrary to his own, "that the case would be continued because he had instructed said witness not to attend," which statement was overheard by one of the attorneys for the state prosecuting the cause, and thereupon, in the presence of the veniremen from which the jury in the case was afterwards chosen, the said M. Dorenfield was put upon the stand, and questions were propounded to him attempting to elicit from him an admission that he had instructed said Max Roberts not to attend as a witness, all of which he denied, but stated he had only inquired for the benefit of his wife, who was sick, whether said witness was able to attend court, nevertheless the court announced to him he must remain in court and must report therein on the following morning, thereby virtually putting him under arrest, and thereby indicating that said Dorenfield was interfering with the administration of justice in the case and thereby prejudicing defendant's cause by indicating his son-in-law was interfering with the administration of justice therein, and thereby compelling defendant to answer for the illegal act, if any, of his son-in-law, which tends to deprive and did deprive defendant of an impartial trial. This bill is approved with this explanation: "The incident of Dorenfield's conduct attracted very little attention. Every single venireman and juror examined by the defendant's counsel, and accepted in the case, in fact, swore, in response to the direct question, that the incident of the conduct of Dorenfield and his examination with reference thereto did not influence and would not influence him, and each such juror expressly declared upon his oath at that time that such incident and examination would be by him entirely eliminated from the trial of the case. Both the court and others present preserved a written note of the testimony of each juror, as above detailed, and the fact of their so testifying will not be disputed by the defendant or his counsel. That the examination of Dorenfield took place at a time when the court was at case and before the motion for continuance was overruled. No remark nor any conduct of the court, at the time, could have been construed into an arrest of Dorenfield. The court took particular pains not to let any idea of what course would be taken with reference to Dorenfield's conduct become known. Without show of feeling or displeasure, the court requested Dorenfield to remain in the court until he was discharged. Dorenfield went and came as he pleased during the further progress of the trial. And not until the case was ended, and the verdict was actually rendered, did anybody know that the court proposed to punish Dorenfield for contempt. This bill shows that appellant sought a continuance for Max Roberts and his wife; whereas, the bill of exceptions reserved to the overruling of application for...